Bava Metzia 4a

[The oath obligated by] a single witness which is subject to contradiction and hazamah demonstrates [that an oath can be obligated by testimony which is subject to nullification by contradiction and hazamah ]. For proper understanding of this Tosfos we must keep in mind: Hazamah has a double function. It causes a) nullification of the testimony and also b) obligates the zomemim witnesses to pay their intended victim what their testimony would have cost him. For the sake of clarity, we will mark each reference to witnesses’ testimony with: z) for the zomemin witness who testify falsely about an intended victim. m) for the second set of witnesses who are מזים - discredit the zomemim witnesses. The word hazamah does not appear in our text of the Gemara. Tosfos will defend the text that does have this word in this sentence. The word hazamah usually conjures the punishment meted out to zomemim z) witnesses whose testimony is discredited by other m) witnesses who testify that we were with the zomemim witnesses elsewhere at the time of the purported event and they could not possibly have seen the event about which they are testifying. Usually, zomemim witnesses are subject to the punishment for the crime that they are testifying about. This is not true when there is only one witness. This is of course the reason for not having the word hazamah in the text of our Gemara, since a single witness is not subject to this penalty. Tosfos explains that even though one witness is not subject to the standard b) punishment of zomemim witnesses, the word can appear in our Gemara. The word hazamah can rightfully appear here in this sentence, since by the process of hazamah [the single witness’] testimony is nullified. Even though the usual punishment for hazamah b) is inapplicable, the process does a) nullify his testimony. This is an inherent weakness of a single witness’ testimony as compared to a defendant’s admission. At this point in the dialogue, where the Gemara is demonstrating the relative strengths and weaknesses of various sources of information, it is justified in mentioning that the single witness’ testimony is subject to a) nullification by the process of hazamah. At this point the Gemara is attempting to disprove the kal v’chomer that witnesses’ testimony on half the plaintiff’s claim can obligate an oath by the defendant. The objective of such analysis is to show that one’s admission is inherently stronger than the testimony of witnesses and that is why one’s own admission generates an obligation to swear, whereas witnesses’ testimony which is inherently weaker cannot generate such an obligation. Proof that one’s admission is more powerful > than witnesses’ testimony: One’s own admission cannot be nullified by the hazamah process, whereas: Witnesses’ testimony can be nullified by the hazamah process. Tosfos now entertains the notion that there is an extremely powerful aspect of one’s own admission as compared to witnesses’ testimony that seems to have been overlooked by our Gemara. That is the fact that zomemim witnesses must pay the amount that they planned to obligate their victim to pay. For example: When z) witnesses testify that Ruvain owes Shimon one hundred zuz and it turns out that they are zomemim, the z) witnesses must pay Ruvain one hundred zuz. This is totally untrue of one’s own admission. For example: If Ruvain admits that he borrowed a hundred zuz from Shimom on Sunday the first of Nissan at twelve noon in New York City. m) Witnesses testify that Ruvain was with them in Los Angeles on Sunday the first of Nissan at nine a.m. Pacific time. Ruvain is not obligated to pay even though m) witnesses say that he falsely admitted that he owes Shimon one hundred zuz. Perhaps the Gemara should have used this strength of one’s admission as compared to witnesses’ testimony to undermine the basis of the kal v’chomer. We should not ask this question to undermine the kal v’chomer by proving that one’s admission is stronger than witnesses’ testimony, as follows: What can you prove from one’s own admission, which is so powerful that he does not need to pay even when his admission is nullified by the process of hazamah? Can you say the same for witnesses who do need to pay their intended victim when their testimony is nullified by the process of hazamah? Proof that one’s admission is more powerful > than witnesses’ testimony: Witnesses must pay when their testimony is discredited by hazamah, whereas, One does not need to pay when his admission is discredited by hazamah. This challenge to the kal v’chomer is much more potent than the Gemara’s present challenge, which is demonstrating that one’s own admission stands even when assailed by hazamah as compared to the testimony of witnesses which is nullified by the process of hazamah. This is countered by introducing a solitary witness, whose testimony can also be nullified by hazamah and even so his testimony generates an oath obligation. Proof that even testimony that can be nullified by hazamah generates an oath obligation: The testimony of a single witness can be nullified by hazamah and even so it generates an oath obligation. But if the Gemara is demonstrating the power of an admission that he cannot be obligated to pay by the process of hazamah, we cannot use the single witness to prove that even when testimony is from a source that needs to pay when nullified by hazamah as proof that even testimony that is subject to the penalty of hazamah can generate an oath obligation, because the single witness also does not pay when his testimony is nullified by hazamah. Then had the Gemara focused on aspect b), the admission not being subject to paying when nullified by hazamah, [the Gemara] could not have said - a single witness proves that even testimony that is b) subject to pay when nullified by hazamah generates an oath obligation, because a single witness also does not pay when his testimony is nullified by hazamah. If so, both source of the common characteristic system would be instances where they cannot be obligated to pay via the process of hazamah. How can we learn from either of these two sources that witnesses’ testimony, which is subject to pay via the process of hazama can also generate an oath obligation? Tosfos explains that this argument that both sources of the kal v’chomer are beyond paying via hazamah is simply not true. It is definitely true that one’s admission is more powerful than witnesses’ testimony and that is why he does not pay when his admission is discredited by hazamah, but the same cannot be said for the single witness who does not pay when his testimony is nullified by two witnesses. For the reason that a single witness does not pay when his testimony is nullified by hazamah, is not because it is more stringent or more powerful than the testimony of two witnesses, as is one’s admission, rather, the reason for his not needing to pay is the inherent impotence of his testimony, because with his testimony he cannot obligate his intended victim to pay money. Therefore, since his statement is a) nullified via the hazamah process, it is considered that his testimony is subject to hazamah. In the case of a single witness, the b) punishment aspect cannot be invoked, because of the inherent impotence of a single witness’ testimony, but the a) nullification aspect can be applied. Thus his testimony is viewed as subject to hazamah. Even so, he can generate an oath obligation, so too, two witnesses whose testimony is subject to hazamah can also generate an oath obligation. The Gemara will soon say: How can you learn from the common characteristic of an admission and a single witness, but in both those cases the punishment of hazamah is not applied? We see that the Gemara does consider aspect b) a proper challenge to the derivation. But shortly the Gemara does use this aspect b) to challenge the common characteristic derivation? That is because when dealing with a common characteristic derivation we may challenge it even with an insignificant challenge. There is a definite weakness in this challenge as Tosfos pointed out earlier. That a single witness does not pay when nullified by hazamah is not because of the strength of his testimony, but rather because of its weakness. The Rabanan consider this challenge as too weak to disprove a healthy kal v’chomer, but since ultimately both a single witness and one’s own admission are not subject to the penalty of hazamah, this can be used to negate a common characteristic derivation, even though it cannot be used to overturn a kal v’chomer. R’ Chiya who does hold that we can learn from the common characteristic derivation that witnesses’ testimony can generate an oath obligation holds that even a common characteristic derivation, cannot be challenged with this insignificant challenge, because the reason that a single witness does not pay when nullified by hazamah, is because of his inherent weakness, because he did not have the power to generate a payment of money with his testimony.

“The Tanna [of our Mishna] taught this”, [refers to] another [rule taught] by R’ Chiya. A review of our Gemara is in place: On 3a R’ Chiya teaches that A) if a plaintiff claims one hundred zuz and the defendant denies the claim entirely and two witnesses testify that the defendant owes fifty zuz, the defendant must swear that he does not owe the second fifty zuz, just as the defendant would need to swear if he had admitted owing fifty zuz. This ruling is referred to as the earlier teaching of R’ Chiya. Initially the Gemara said that ‘our Tanna taught’ this ruling in our Mishna. The Gemara on 4a then showed how this ruling cannot be deduced from our Mishna. The Gemara continues saying that there is a second ruling of R’ Chiya that our Tanna taught in the Mishna. That is the rule of B) ‘ הילך - here, it is yours’. For example: Ruvain says to Shimon you owe me one hundred zuz. Shimon responds: I owe you only fifty and here, it is yours. Shimon offers immediate payment for the fifty zuz that he admits owing. R’ Chiya says that even in this case Shimon needs to swear. Rav Sheishes disagrees. He holds that one swears only when he does not immediately offer to pay the portion he owes. The Gemara is now saying that when R’ Chiya said ‘the Tanna taught’ my ruling in the Mishna, he was referring to B) this latter ruling and not to A) his earlier ruling. In order to view this ruling and how it can be deduced from our Mishna from the proper perspective, we must understand that the case of the Mishna is one where there is an oath obligation similar to a) one who partially admits the claim of the plaintiff and b) he is obligated to swear even though he is offering immediate payment for the portion he owes. We must first see how in our Mishna a) there is an oath obligation similar to when one admits partial liability and then we can perhaps see R’ Chiya’s second ruling: b) that even when the defendant offers immediate payment, he is obligated to swear. For greater clarity let us review Rashi together: The Gemara initially thought that according to R’ Chiya, the reason for our Mishna’s ruling is because, we [the court] testify that the portion of the garment that each of the litigants is holding is his. This is similar to when one claims: you owe me one hundred zuz and the other responds: I owe you nothing. While witnesses testify that [the defendant] owes fifty zuz, as in the other [earlier ruling] of R’ Chiya, where [R’ Chiya] obligates [the defendant] to take a Torah oath. We will look at this case first from Ruvain’s and then from Shimon’s perspective: Ruvain claims that the garment is entirely mine. This is the equivalent of saying that you Shimon, owe me one hundred zuz. Shimon claims: it is entirely mine. This is the equivalent of Shimon saying: I owe you nothing! The court sees that half is definitely Ruvain’s, because he is holding the garment. This the equivalent of witnesses testifying that half of Ruvain’s claim is true. The Mishna rules that Shimon must swear to defend the half of the garment that he does receive. This is similar to R’ Chiya’s first ruling that the testimony of witnesses accomplishes the same as one’s own admission. Now, if we just reverse the roles of Ruvain and Shimon, we will have the same exact ruling for Shimon as we do for Ruvain. The Gemara sees this ruling of the Mishna in this light. Thus we have in our Mishna the basis for an oath obligation a) R’ Chiya’s first ruling. The Gemara also sees this case as one of ‘ הילך - Here, it is yours!’, since delivery of half the garment to each of the litigants is immediate. Thus we have demonstrated R’ Chiya’s second ruling b) that even in a case of ‘ הילך - Here, it is yours!’, there is an oath obligation. We, the court, testify that which this etc. [litigant is holding is his, and as if the other litigant said, “Here, it is yours.” Rashi explains that since our perception of what we see, is that Ruvain and Shimon each own at least half of the garment, this is equivalent to the testimony of witnesses who testify that Shimon owes Ruvain half of Ruvain’s claim. Shimon must swear that at least half is his because of R’ Chiya’s earlier ruling, that the testimony of witnesses (in this case, the court’s perception that Ruvain owns at least half of the garment) can generate an oath obligation on the other half of the garment. As explained earlier, we must first have an oath obligation and then we can apply R’ Chiya’s second ruling that even when immediate payment is offered the defendant is also obligated to take an oath. According to Rashi’s explanation, the basis for the oath obligation in our Mishna is R’ Chiya’s earlier ruling. Thus, by demonstrating that the Mishna is teaching R’ Chiya’s second ruling, we automatically have proof of his first ruling. If not for the first ruling, there would be no oath obligation at all. This is difficult, for since we cannot prove this latter ruling b) about when the defendant says, הילך - Here, it is yours!’, only because of the earlier ruling of R’ Chiya a) that one is obligated to swear upon the testimony of witnesses who say that the defendant is partially liable, we should also say ‘the Tanna taught’ about the earlier ruling of R’ Chiya. Since we can prove ruling b) only if ruling a) is true, any proof of ruling b) is automatically proof of ruling a). We are compelled to say that it is possible that ruling b) can exist without ruling a), and that our Mishna need not be understood specifically as a case of b) R’ Chiya’s latter ruling being imposed on an oath obligation established by his a) earlier ruling. There must be a way of explaining the initial oath obligation other then as a result of R’ Chiya’s earlier ruling. We already know that a) one’s partial admission generates a Torah oath obligation. We are considering that b) the testimony of witnesses about part of the plaintiff’s claim might also generate a Torah oath obligation. R’ Chiya’s latter ruling that even when the defendant says, “Here, it is yours!”, he must swear by Torah law is applicable in both instances, when the original claim is a) partially admitted by the defendant or b) when we hear from witnesses that he owes part of the claim. Our Gemara seems to be saying that the basis for the oath in our Mishna is that the court who sees that half of the garment belongs to Ruvain is the equivalent of b) the ' testimony. But must we say that the court’s view of this situation is equivalent to b) witnesses’ testimony? Perhaps it is equivalent to hearing an admission from Shimon that half the garment belongs to Ruvain? For this reason we can say, that the words in brackets in our text ‘we, the court, are witnesses’ used to describe our perception that Shimon owes Ruvain half the garment is imprecise, rather, now we consider that which [Ruvain] is holding [the garment] even more than the testimony of witnesses. It is considered as if [Shimon] admits to [Ruvain] that [half] is [Ruvain’s]. Thus the Mishna is an example of when R’ Chiya’s latter ruling is imposed on a) one’s own partial admission. There is no evidence at all that witnesses’ testimony that Ruvain owns half the garment would generate a Torah oath. Tosfos will now show that his explanation of the Gemara’s phrase ‘ אנן סהדי - we are witnesses’ as meaning ‘we perceive an admission’ is not problem free. As usual, we will need to review the Gemara’s rejection of R’ Chiya’s earlier ruling. The Gemara is discussing whether R’ Chiya’s earlier ruling was ‘taught by the Tanna’ of our Mishna: But that which [R’ Chiya] said “and our Tanna taught this” in our Mishna, is it comparable? There, in R’ Chiya’s case, the lender has witnesses that the borrower borrowed fifty zuz, but the borrower has no witnesses that he does not owe the lender more than the fifty zuz that the witnesses testified about. For if the borrower had witnesses that he does not owe the lender anymore, R’ Chiya would not require an oath for the balance, since the borrower has witnesses who testify that he owes no more than fifty zuz. Here, in the case of our Mishna, just as we are witnesses that [Ruvain] owns half, we are also witnesses that [Shimon] owns half, and even so an oath is required! It seems that the Gemara’s rejection of R’ Chiya’s earlier ruling is because whatever evidence we have on behalf of Ruvain, we also have that very same evidence on behalf of Shimon. Just as we have the equivalent of witnesses testifying that Ruvain owns half, we have witnesses who testify that Shimon owns half. When discussing R’ Chiya’s latter ruling, the Gemara neglects to cite the very same difficulty. Tosfos will now re-examine the basis for the oath in our Mishna, before we reach the issue of ‘Here, it is yours! But this remains difficult! For in any case we can challenge R’ Chiya’s deduction of his latter ruling from our Mishna by arguing that in our Mishna, just as [Shimon] admits to [Ruvain] that half is his, so too, [Ruvain] is admitting to [Shimon] that half is his and even so an oath is required, as [the Gemara] asks this very question about R’ Chiya’s earlier ruling. If so, how is this attempt to say that R’ Chiya was not discussing his first ruling but his latter ruling an improvement over the previous discussion about the earlier ruling of R’ Chiya? The same problem we have with the earlier ruling re-emerges with the latter ruling. Eventually, our Gemara says that even if the oath obligation in our Mishna is inherently Rabbinic, the Rabanan would not institute an oath that is not at all similar to an oath required by Torah law. Thus, if in a case of ‘ הילך - Here, it is yours!’ there would be no obligation to swear by Torah law, the Rabanan would not institute a Rabbinic oath in a similar situation. Tosfos suggest that even at this earlier point in the dialogue, the Gemara was utilizing this approach, even though it is first articulated later in the Gemara. We can answer: That now in this earlier point in the dialogue as well [the Gemara] is proving that in a case of ‘הילך - Here, it is yours!’ there is an oath obligation because of the reason that will soon be mentioned in the Gemara: If when a defendant who has admitted half says ‘Here, it is yours!’, he is exempt from an oath by Torah law, the Rabanan would not have instituted a Rabbinic oath that is not comparable to any oath prescribed by the Torah. Thus, the fact that in our Mishna an oath is required, even if this happens to be a situation where the oath is only Rabbinic, because the evidence on both sides is equal,it still proves that by Torah law in a situation of ‘Here, it is yours!’, there is an obligation to swear. We cannot say the same for R’ Chiya’s earlier ruling. It is possible that even if the testimony of witnesses cannot generate an oath obligation, the litigants in our Mishna would still be obligated to swear. However, according to the earlier ruling of R’ Chiya, even if witnesses’ testimony cannot generate an oath obligation and when witnesses testify that the defendant owes half the plaintiff’s claim he is exempt from an oath, the Rabanan would institute an oath in the case of our Mishna, because the fact that the litigants are each holding the garment is tantamount to an admission, which certainly generates an oath obligation. When we consider the source of information in our Mishna, which is that we see the two litigants each holding the garment, we may view this either as witnesses’ testimony or as an admission that half the garment belongs to each of the litigants. Even if we reject R’ Chiya’s earlier ruling that the testimony of witnesses generates an oath obligation, the case of two litigants holding a garment requires an oath because the fact that they are holding the garment is tantamount to an admission. Thus, the Gemara is correct in its rejection of R’ Chiya’s earlier ruling. However, if when a litigant says, “Here, it is yours!,’ he is exempt from taking an oath, there could be no requirement for an oath in our Mishna, because our Mishna is clearly a case of ‘Here, it is yours!’. Although Tosfos is satisfied with the logic of his explanation of the Gemara, he is unhappy with how it conforms to the text of our Gemara. This explanation is awkward! For according to this explanation, the reason that [the Gemara] could not say “and the Tanna taught it” in reference to the earlier ruling of R’ Chiya is because we can view [the litigants’] holding the garment as an admission and not as witnesses’ testimony, but that was not the gist of [the Gemara’s] challenge earlier. Rather, the reason for saying that R’ Chiya’s earlier ruling is not taught by the Tanna of our Mishna was articulated as: because just as we are witnesses for [Ruvain], we are also witnesses for [Shimon] etc., but according to Tosfos’ explanation that is not the reason at all, it is because each litigant’s holding the garment can be viewed as an admission by his opponent.

And Rav Sheshet says - [One who says]: Here you are [is] exempt. Our Gemara fails to rule in this dispute. Tosfos tells us that elsewhere the Gemara does demonstrate its halachic preference in this issue. It appears that the halacha is in accordance with Rav Sheishes, for in Perek Hashoel (below 100a) in regard to a dispute about whether a large slave or a small slave was sold, [the Gemara] argues that there should be no oath obligation because it is a case of “Here, it is yours!”. The Gemara there is a clear indication that it assumes that one is exempt from swearing in a case oh “Here, it is yours!”. However, in Sefer Chaifetz it is to be understood that he rules that in a case of “Here, it is yours” the defendant is obligated to swear. See Tosfos Bava Basra 128b: ד'ה הלכתא. Tosfos there quotes Rabbeinu Chananel as also ruling in accordance with Rav Sheishes that in a case of “Here, it is yours!” the defendant is exempt from swearing.